GENERAL TERMS AND CONDITIONS EXSION365 BV
1. Definitions
Unless context shows evidence to the contrary, the following definitions apply:
1.1. EXS: Exsion365 BV, a limited liability company, with a registered office at Groen van Prinsterersingel 47, 2805 TD Gouda, the Netherlands, and listed in the Trade Register under number 29031530.
1.2. General Terms and Conditions: These Terms and Conditions of Exsion.
1.3. Standard Dynamics NAV / Business Central Software: Microsoft Dynamics 365 NAV / Business Central software and documentation provided under licence by Microsoft, for which a maintenance subscription can be taken out.
1.4. Standard EXS Software: All EXS software, calculation models and documentation developed by EXS and provided under licence. This software is known as Exsion Reporting, Exsion Corporate, HB Real Estate, HB Construction Supply and HB SmartTrade, and provided under a licence and maintenance right.
1.5. Supplementary Software: Software and documentation developed by EXS or third parties, and deployed as a supplement to Standard Micorosft Dynamics NAV / Business Central software, in order to jointly meet the Client’s desired functionality, as a single, integrated system.
1.6. Software: A collective term for software mentioned in articles 1.3, 1.4 and 1.5..
1.7. Services: All services provided by EXS, such as counsel, research, design creation, software modification and installation, data conversion, consultancy, training, aftercare and maintenance.
1.8. Client: Any natural person or legal entity with whom/which EXS enters or has entered into an Agreement for provision of Software and/or Services.
1.9. Location: The location specifically specified for delivery/provision in the Agreement, or, if no specific delivery location is designated, the Client’s (registered) office address, as listed in the Agreement.
1.10. Agreement: The agreement concluded between the Client and EXS, pertaining to provision of Software and/or Services.
1.11. Provision: The actual delivery of Software and/or Services agreed upon at the Location.
1.12. Equipment: Computer hardware and related system software within the Client’s IT infrastructure, deployed to make the Software accessible to users.
1.13. Installation: Operational delivery of provided Software, in such a manner that it can function on the Equipment.
1.14. Additional Work: Modification, supplementation and/or correction of the Provision agreed upon, at the Client’s request.
1.15. Documentation: All manuals, drawings, configurations, specifications and other written information related to the Software that describe its features and potential uses.
1.16. Modification: Changes made in the Software after Provision or Installation.
1.17. Error: Complete or partial failure of EXS software to meet specifications agreed upon in writing.
1.18. Maintenance: All agreement-based maintenance work performed by EXS, related to Software.
1.19. Support: Maintenance aspects related to support of users and/or administrators of provided Software, including counsel, research, training and aftercare by EXS.
1.20. Cloud Software: Software that runs in Microsoft’s data centers and not on the servers of the Client or any Management Service Provider or Hosting Party hired by the Client. This software is either from Microsoft or third parties. This software is provided under a licence that depends on the number of users and usage period.
1.21. Personal Data: Any data related to natural persons and subject to privacy legislation in force.
2. Applicability of These Terms and Conditions
2.1. These General Terms and Conditions apply to all Agreements and all related (legal) actions, both of a preparatory as well as an executive nature, such as quotations, order confirmations and deliveries.
2.2. Any terms and conditions of the Client or other, sector-specific or general provisions do not apply, unless their applicability has been explicitly accepted in writing by EXS. Such acceptance only applies to the Agreement(s) in question.
2.3. If EXS does not continuously require strict compliance with these Terms and Conditions, this does not entail that they do not apply, nor that EXS forfeits the right to require strict compliance with these Terms and Conditions in future cases, similar or not.
2.4. If any provision of these Terms and Conditions is deemed void or invalid for whatever reason, the rest of these Terms and Conditions shall remain in full force and effect. In that case, the parties involved will negotiate a new provision, that approximates the contents, purpose and scope of the original provision as closely as possible.
3. Offer and Agreement
3.1. All EXS offers are free of obligations with respect to pricing, contents and implementation, as well as delivery time and availability, unless stated otherwise in writing. If an offer is accepted by the Client, EXS is entitled to revoke the offer within two working days upon receipt of acceptance.
3.2. Contents of all provided price lists, brochures, demos and other data accompanying an offer have been established as accurately as possible. Given data are only binding to EXS if explicitly confirmed in writing by EXS. Offers are based on any information provided by the Client when submitting a request, the Client will guarantee the correctness and completeness thereof.
3.3. If deemed necessary or desirable by EXS for proper execution of the agreement, EXS is entitled to engage third parties, the costs of which will be passed on to the Client, in accordance with the quotation provided by EXS.
4. Services
4.1. The Client may request EXS to perform services.
4.2. For this purpose, EXS will submit a quotation with a description of the services to be performed. EXS will only commence after written confirmation.
5. Delivery Times, Cost Indications, and Periods
5.1. Unless agreed otherwise explicitly and in writing, delivery times, cost indications and periods are approximate. Specified delivery times and periods are indicative and shall never be regarded as deadlines. In case of late delivery or other late performance, EXS must be given written notice of default, granting EXS a reasonable period for performance.
5.2. Excess of periods specified by EXS shall never entitle the Client to suspend fulfilment of any obligation towards EXS.
5.3. EXS is not bound by penalty clauses used by the Client, unless and insofar explicitly agreed to otherwise in writing.
5.4. Fixed delivery dates and periods can only be agreed upon after written permission from the executive board.
6. Provision
6.1. Unless agreed to otherwise in writing, provision of software and services will take place at the Location, on working days and during common office hours in the Netherlands.
6.2. EXS is entitled to suspend new deliveries of Software and provision of Services, until the Client has fulfilled all outstanding (payment) obligations towards EXS, for whatever reason.
7. Transfer of Risk and Retention of Title
7.1. Upon delivery, provided goods are at the risk and expense of the Client.
7.2. If and insofar agreed upon that the Client will acquire ownership of goods (for example, copies of Documentation, media that contain Software, or Equipment), transfer of title will take place after the Client has fulfilled all payment obligations towards EXS, by reason of the/all concluded Agreement(s) underlying to provision(s) to the Client by EXS, including all common (account balance) obligations and all EXS claims arising from the Client’s failure (including interest, costs and penalties) with respect to such Agreement(s).
7.3. Until transfer of title, the Client is obliged towards EXS to manage delivered goods with due care and attention, and to use them in accordance with guidelines provided by EXS and/or those that arise from general use.
7.4. The Client is not permitted to pledge goods provided by EXS, nor otherwise encumber them with (a) limited right(s), if and insofar ownership thereof is held by EXS (whether or not based on retention of title).
7.5. Based on the provisions in this article, EXS, as the owner, is entitled to retrieve, or have retrieved, provided goods from the Client or parties holding the goods in question on his/her behalf, if the Client does not fulfil his/her obligations and/or is suspected to not fulfil his/her obligations. The Client is obliged to cooperate in the aforementioned retrieval of provided goods. This only applies to Standard EXS Software.
7.6. In case other parties claim goods of which certain components are subject to retention of title, the Client is obliged to report the retention of title stipulated herein and not proceed with delivery until after obtaining written permission by EXS.
8. Pricing and Fees
8.1. EXS will charge the Client in advance for all Software and Services, in accordance with applicable EXS fees. Unless agreed to otherwise, hours for services performed will be billed monthly afterwards.
8.2. Annual Maintenance and Support (i.e. helpdesk) fees shall be specified in the Agreement and will be charged in advance annually, unless agreed otherwise in writing, together with the amount owed to Microsoft within the scope of maintenance.
8.3. The Client can cancel maintenance or a subscription in writing, two months prior to the expiration date of the period or subscription.
8.4. EXS is entitled to annually change its fees/prices, at the beginning of a calendar year. A change in Service rates may not exceed the index that applies to EXS services (at the discretion of EXS). EXS is entitled to pass on legal changes, as well as price changes set by Microsoft for maintenance and Standard Microsoft Dynamics NAV Software and third-party software licences.
8.5. Unless explicitly stated otherwise in the EXS pricelist or offer, prices specified by EXS are:
(a) Exclusive of VAT and other government-imposed levies;
(b) In Euros;
(c) Exclusive of any travel and/or accommodation costs.
9. Payment
9.1. Unless agreed to otherwise, payment must be made within 10 working days of the invoice date, without any deduction, setoff or suspension, to a bank account designated by EXS. The value data listed on EXS bank statements is decisive and shall be considered the day of payment.
9.2. In the event of untimely payment, the Client shall be in default by operation of law, thus EXS will be entitled to the statutory commercial interest rate, without prejudice to any further rights EXS is entitled to. In addition, EXS has to right to recover all collection costs incurred, both legal and extrajudicial collection costs, as well as reasonable lawyer fees.
9.3. EXS is entitled to require the Client to furnish security for payment of future instalments, and to suspend further execution of work and deliveries agreed upon, if it is the opinion of EXS that the security provided is insufficient.
9.4. Payments made to EXS by the Client will always be deemed to cover payment of interest and/or costs owed, and, subsequently, payment of the oldest outstanding invoices.
10. Standard Microsoft Dynamics NAV / Business Central Software
10.1. The stipulations in this article especially apply when EXS provides licences for Standard Dynamics NAV Software under the Agreement.
10.2. EXS merely provides licences for Standard Microsoft Dynamics NAV Software specified in the Agreement. Usage of Standard Microsoft Dynamics NAV / Business Central Software is subject to applicable Microsoft licence terms. The Client will comply with these terms. Only partnerships affiliated with the Client (with the Client holding more than 50% of shares) are authorised to use Standard Microsoft Dynamics NAV / Business Central Software, provided that the partnerships in question are made known to EXS in a timely manner, and do not result in exceeding the number of users of Standard Microsoft Dynamics NAV / Business Central Software for which a licence has been obtained. The Client is responsible for keeping an up-to-date list of partnerships.
11. Standard EXS Software
11.1. The stipulations in this article especially apply when EXS grants the Client the right to use Standard EXS Software under the Agreement.
11.2. EXS indefinitely grants the Client the non-exclusive, non-transferable right for private use of Standard EXS Software, in accordance with provided documentation. Unless agreed to otherwise in writing, the source code of Standard EXS Software will not be made available to the Client, nor will any usage rights be granted for the source code in question.
11.3. Unless agreed to otherwise in writing, the Client is only permitted to make a maximum of two (2) copies of Standard EXS Software for security purposes. These copies shall not be deployed by the Client, but solely utilised to replace original materials that have become unusable, and will be fitted with the same indications, brands, numbers and other distinctive signs as the originals, that are decisive in assessing intellectual property and origin of Standard EXS Software.
11.4. The Client is not permitted to have copies made by a third party without prior written consent by EXS.
11.5. Without prior written consent, the Client is not permitted to transfer, lease, pledge Standard EXS Software (including copies thereof), nor to grant third parties any right or claim, publish it, make it available for inspection, or allow third parties to use it, or use it their behalf.
11.6. In addition, the Client is not permitted to modify, translate/localise or supplement Standard EXS Software, nor have this carried out by a third party.
11.7. If Standard EXS Software comes into the possession of third parties due to the Client’s fault or failure, the Client will forfeit an immediately due and payable penalty to EXS for each infringement found, which equals the fee agreed upon for the right of use of Standard Software, without prejudice to the right of EXS to fulfilment and compensation for damages suffered.
11.8. The right of use mentioned in article 10.2 exclusively applies to the provided version of Standard EXS Software. Only if the Client has concluded an Agreement to that effect, the right to use also applies to updates and new versions of Standard EXS Software.
12. Supplementary Software
12.1. The stipulations in this article especially apply when EXS develops and/or provides Supplementary Software (the latter possibly through third parties) under the Agreement.
12.2. In consultation with the Client, EXS will specify in writing which Supplementary Software will be developed and in what manner. This will be done based on information provided by the Client, who will guarantee the correctness and completeness thereof. After the Client has approved the specifications in writing, EXS shall undertake development of Supplementary Software with due care.
12.3. If agreed upon that development of Supplementary Software will take place in phases, EXS may suspend commencement of work that is part of a next phase, until the Client has approved the results of the preceding phase.
12.4. Modifications in Supplementary Software compared to approved specifications prior to the moment of delivery or installation, must be notified in writing to EXS. These modifications shall be regarded as Additional Work, unless agreed to otherwise in writing.
12.5. Unless agreed to otherwise, EXS indefinitely grants the Client the exclusive, non-transferable right to private use of Supplementary Software, in accordance with provided Documentation, as well as the exclusive right to use the source code, to ensure continuous and normal use of Supplementary Software. The Client is not permitted to use or exploit the source code otherwise.
12.6. EXS shall provide the Supplementary Software to be developed, including the source code in question, to the Client, in accordance with the specifications and any modifications made. If agreed upon, EXS shall install Supplementary Software at the Client’s site.
12.7. After delivery or installation, the Client has the option to test Supplementary Software by means of an acceptance test for a maximum period of 30 days, unless a different period is specified in the Agreement. The acceptance test shall be conducted by the Client and must be prepared in close consultation and collaboration with EXS.
12.8. During the test period of Supplementary Software, Errors and/or modifications desired by the Client may be notified in writing to EXS.
12.9. After the test period, EXS shall determine, in consultation with the Client, whether (an) Error(s) or modification(s) have really occurred, based on recorded errors and desired modifications.
12.10. In the event of (an) Error(s), EXS will remedy it/them to the best of its ability and notify the Client in writing as soon as it is done, after which the Client will again be given the opportunity to test Supplementary Software during a period of 10 days. In the event of modifications in Supplementary software, EXS will implement them after acceptance of the assignment to do so, and charge the usual fee.
12.11. If acceptance test progress is hindered by (an) Error(s), EXS shall ensure necessary support as soon as possible. In the event of (an) Error(s), that substantially hinder the functioning of Supplementary Software in such a way that the acceptance test must be terminated, the remainder of the test period will be suspended, from the moment of actual determination of the Error(s) in question until the moment that the Error(s) has/have been remedied, in accordance with article 11.10.
12.12. Supplementary Software is deemed accepted:
(a) If the Client states to accept Supplementary Software: On the day of that statement;
(b) If, after the test period, no Error(s) was/were determined: On the day following the test period in question;
(c) If the Client fails to conduct the acceptance test agreed upon within 30 days after delivery or installation by EXS, or if the acceptance test agreed upon cannot be conducted or completed due to circumstances that cannot be imputed to EXS, on the 31st day following the day on which delivery or installation by EXS took place.
12.13. If the Client and EXS agree upon delivery in phases, any refusal of acceptance of a given phase shall never affect acceptance of delivery in a previous phase.
12.14. With respect to the right to support for Supplementary Software provided by EXS, the Client may conclude an Agreement to that effect with EXS.
13. Cloud Software – Microsoft, Third Parties and EXS
13.1. Through EXS, the Client may purchase licences for the usage of Microsoft Dynamics 365 Business Central and third-party software in the cloud. Microsoft’s licensing conditions apply, as well as pricing conditions which may be subject to change.
13.2. The Client will grant EXS the right to maintain Microsoft Dynamics 365 Business Central and Power Platform licences.
13.3. EXS will only modify these licences after obtaining permission.
13.4. Microsoft is responsible for security, software uptime and system scaling. EXS will have a mediating role.
13.5. The client will provide EXS with tenant access for support purposes, as well as telemetry data for error detection.
13.6. The Client will add supplementary Apps (from AppSource) in consultation with EXS. Both parties will determine support and configuration for this software in consultation.
13.7. Sector-specific apps and Exsion Reporting may only be added after written permission from the Client. EXS will annually announce applicable pricing conditions, as well as general terms and conditions.
13.8. The Client has the right to terminate the licence by written notice, subject to the terms of notice. The notice depends on the purchase period agreed upn, including the related discount.
13.9. Upon termination, the Client can download his/her data through the Business Central interface.
13.10. The Client will respect intellectual property rights of Microsoft, third parties and EXS.
13.11. Cloud Software is automatically updated to the latest version. The period in which the Client accepts this latest version, will take place in consultation with EXS and accordance with Microsoft’s preconditions, within Microsoft’s preconditions.
13.12. Prior to updating, specific changes made in cloud software must be tested by the Client in the test environment provided by Microsoft (Sandbox).
14. Guarantee
14.1. EXS does not warrant standard software provided my Microsoft, nor software provided by third parties.
Unless agreed to otherwise, for Standard EXS Software a guarantee period of three months applies, starting upon delivery. For Supplementary Software, a guarantee period of 30 days applies, starting upon acceptance. If the Client concludes a maintenance agreement with EXS for Software provided by EXS to the Client, prior to the start of or during the guarantee period, the provisions of the maintenance agreement in question will replace this guarantee.
14.2. Unless agreed to otherwise, work within the scope of the guarantee will take place during common EXS office hours. For this purpose, the Client will grant EXS free access to Software provided and related technical provisions.
14.3. The guarantee does not apply if:
(a) Modifications have been made in Software provided by EXS, either by the Client or third parties, without written consent of EXS;
(b) Provided Software has been used incorrectly, inappropriately, or, in the opinion of EXS, used incompetently by another party;
(c) Errors are not immediately reported in writing to EXS, as soon as determination is reasonably possible.
14.4. The guarantee will also not apply if provided products are moved after installation, both internally and externally, to different Equipment, without the explicit consent of EXS, even if EXS is responsible for the installation of Software it provides. EXS is entitled to impose reasonable conditions on the consent referred to herein, with respect to providing Software that is ready for use again. EXS will charge the Client applicable fees for work carried out for this purpose.
14.5. Fulfilment of its guarantee obligations by EXS, shall be regarded as the only and complete compensation with respect to Errors. EXS is not bound to any further obligations, nor is the Client entitled to dissolve the Agreement due to Errors. The only exception to this is if EXS defaults on its guarantee obligations.
14.6. EXS may charge costs for Error remedies and Software replacement not covered by the guarantee under this article to the Client, in accordance with applicable fees.
15. Maintenance and Support
15.1. The stipulations in this article especially apply if EXS will provide Maintenance and/or Support to the Client under the Agreement. Maintenance and support are only related to software provide by or through EXS, both Cloud Software and software running on the Client’s systems or the Client’s managed services provider.
15.2. EXS will carry out its work within the scope of Maintenance and Support to the best of its abilities.
15.3. Activities within the scope of Maintenance consist of:
(a) Error remedies, as described in articles 15.9 up to and including 15.13;
(b) Provision of updates and new Software versions, as described in articles 15.9 up to and including 15.16;
(c) Support, as described in articles 15.17 up to and including 15.18; and,
(d) if agreed upon in writing, research on provided functionality of new versions, as well as advice to the Client on their relevance to the Client.
15.4. The Client and EXS shall appoint designated contact persons and substitutes to stay in touch on matters concerning Maintenance. These employees of the Client and EXS must possess a sufficient level of knowledge with respect to the Client’s IT infrastructure and Software.
15.5. The Client shall ensure that the knowledge level of users and administrators is sufficient and will continue to be. EXS shall ensure a level of knowledge that allows EXS to continue providing adequate and long-term Software support to the Client.
15.6. The Client shall provide the Software and data files needed for maintenance to EXS free of charge, during a sufficient number of consecutive hours, insofar this does not significantly hinder the operational activities of the Client.
15.7. EXS employees are expected to work with data files of the Client of which up-to-date copies are available.
15.8. When carrying out maintenance work, at least one (1) expert officer of the Client must be available and/or present.
15.9. The Client shall only report Errors through the HB Service Portal, which is available 24/7. The Client shall collect as much detailed data as possible, to enable EXS to determine the cause of an Error as quickly and clearly as possible.
15.10. An Error will be processed by EXS if the Error:
(a) Is specified and reproducible, and;
(b) Occurs in a supported version of the Software in question;
(c) Is not caused by software and/or systems for which no maintenance contract has been entered into
15.11. EXS will assign a reasonable priority to Errors, in accordance with the classification below:
(a) A-type Error: Total system breakdown or dysfunction, or dysfunction of (essential components of) the system in such a manner that operational activities are severely hindered;
(b) B-type Error: Breakdown or dysfunction of non-essential system components, causing hindrance of operational activities, without being detrimental to the Client’s operational management;
(c) C-type Error: All other defects and/or shortcomings.
The event of an A-type Error constitutes a genuine emergency, and, after notification, EXS shall immediately take action and carry out work to remedy the Error. With an A-type Error, EXS will continue work during office hours to remedy the Error, prior to which EXS will discuss with the Client whether this is necessary for the A-type Error in question. In the event of a B-type Error, EXS shall take action within four (4) working hours after notification, and continuously carry out work during office hours to remedy the Error. If a C-type Error occurs, EXS shall commence work to remedy the Error within office hours as soon as possible and solve the issue in question during office hours as soon as possible.
15.12. EXS shall provide feedback on how each reported Error will be or has been solved, with a sufficiently detailed explanation on how a given issue was solved.
15.13. Within the scope of Maintenance, EXS is not obliged to remedy Errors caused by:
(a) Gross negligence on the part of the Client and/or his/her employees;
(b) Usage outside the intended use agreed upon;
(c) An origin external to the Software provided by EXS;
(d) Software modifications made by third parties, i.e. other parties than EXS or persons commissioned by EXS, without prior written consent by EXS.
15.14. EXS shall adhere to Microsoft’s release policy regarding Standard Microsoft Dynamics NAV / Business Central Software. New Software versions are provided to the Client in the form of a new release, if it concerns Standard Microsoft Dynamics NAV / Business Central Software. The Client may freely choose whether to use it. New versions and updates of EXS Software will be provided as soon as they become available. Within the scope of Maintenance, EXS is bound to remedy Errors in new versions and updates, as from the day on which they were installed.
15.15. If the Client does not take into use a new version of Standard Microsoft Dynamics NAV / Business Central Software within six (6) months after notification of its availability to the Client, EXS shall no longer be bound to remedy Errors in older Software if the new release in question has fixed these Errors. The only exception is if EXS has advised the Client in writing not to use the new version. In the event that the Client wants to have Errors remedied that EXS is not bound to remedy based on the above, this will constitute Additional Work.
15.16. Within the scope of Maintenance, new Software versions will only be made available. Services related to new versions, such as installation, are not covered by Maintenance. Such Services can be provided (on-site) by EXS at the request of the Client, in exchange for the fees specified in the Agreement, or, in the absence thereof, applicable EXS fees.
15.17. If EXS shall provide Support under the Agreement, EXS shall be available for counsel by phone and/or e-mail. EXS will provide counsel with respect to the use and functioning of Software mentioned in the Agreement, by means of a helpdesk available during office hours.
15.18. Support will be provided from the EXS office, and will, where possible, primarily take place by remote access to the network of the Client. If explicitly desired by the Client, support activities may take place on-site and will be charged additionally. In close consultation, parties will draw up an access protocol that meets the security requirements of the Client and enables EXS to provide adequate Support.
16. Intellectual Property Rights and Indemnification
16.1. All intellectual property rights related to EXS Software and the underlying source code shall remain with EXS or its suppliers, unless explicitly agreed to otherwise in writing. The Client shall not remove nor modify all distinguishing signs with respect to intellectual property rights of EXS or its suppliers.
16.2. Receipt of the Software will oblige the Client to take appropriate technical measures to prevent use by third parties or abuse by its staff.
16.3. EXS shall indemnify the Client against claims of third parties due to alleged infringement of intellectual property rights of these third parties with respect to EXS Software or any component(s) thereof, provided that EXS is notified in writing immediately, and the Client shall leave dealing with the conflict to EXS exclusively and fully cooperate with EXS.
16.4. If it is established, that EXS Software infringes any intellectual property right(s) and, as a result of which, the Client is denied the right to use, EXS shall, at its expense and discretion:
(a) Either ensure that the Client is yet granted the right to continue use;
(b) Either modify the infringing component in such a manner that the infringement ends;
(c) Either replace the infringing component with one with similar functionality that does not constitute an infringement;
(d) Either take back the EXS Software in question in full, and reimburse the price paid, without being liable for further compensation.
16.5. EXS cannot be held liable for infringements caused by the use of material(s) provided by EXS in combination with Software and Equipment not provided by EXS, nor for use in a different manner than the Software provided by EXS is developed or intended for, nor for any modification(s) made in Software provided by EXS without written consent by EXS.
16.6. If EXS carries out work based on designs, drawings or other instructions provided by or on behalf of the Client, the Client shall guarantee that this does not infringe any intellectual property or other rights of third parties. The Client shall indemnify EXS against all claims of third parties.
17. Confidentiality
17.1. The Client is obliged to complete confidentiality with respect to the Software, Documentation and Services, as well as the knowhow contained therein, and shall not disclose it in any way or form, without prior written consent of EXS. The Client is obliged to take measures to ensure compliance with this confidentiality by its employees and/or assistants engaged.
17.2. Parties are also mutually obliged to complete confidentiality towards third parties with respect to mutually provided confidential information.
18. Access
At any reasonable time, the Client will grant EXS or its designated representatives access to, amongst others, the Location or the location where the Software and Documentation reside, in order to enable EXS to determine whether the Software and Documentation, as well as other materials related to the Software and written information are used in accordance with the provisions of this Agreement.
19. Force Majeure
19.1. None of the parties is obliged to fulfil any obligation, including any legal guarantee obligations and/or guarantee obligations agreed upon, if hindered due to force majeure. Force majeure on the part of EXS is defined as follows:
(a) Force majeure on the part of suppliers of EXS;
(b) Failure to properly fulfil obligations on the part of suppliers prescribed to EXS by the Client;
(c) Defectiveness of items, equipment, software, or materials of third parties, which use is prescribed to EXS by the Client;
(d) Government measures,
(e) Power outage;
(f) Disruption of internet, data network or telecommunication facilities;
(g) War and unforeseen natural disasters; and
(h) General transport problems.
19.2. In the event of a situation of force majeure lasting longer than 60 days, each of the parties is entitled to dissolve the Agreement in writing. Everything that has already been performed pursuant to the Agreement, will be settled accordingly, without either party owing each other anything.
20. Liability
20.1. The total liability of EXS, due to (an) imputable shortcoming(s) in fulfilling the Agreement or any legal reason whatsoever, explicitly including any shortcoming in fulfilling the guarantee obligations mentioned in article 13, is limited to compensation of direct damage, with a maximum equal to the price stipulated in the Agreement (excluding VAT). If the Agreement primarily involves a continuing performance contract with a duration of more than one year, the price stipulated for the Agreement in question is calculated based on the total amount of fees (excluding VAT) stipulated for one year. Under no circumstances shall the total liability of EXS for direct damage, for any legal reason whatsoever, be more than 50,000 Euro (fifty-thousand Euro).
20.2. The total liability of EXS for damage due to death, bodily injury or property damage shall under no circumstances exceed 1,250,000 Euro (one million and two-hundred and fifty-thousand Euro).
20.3. EXS does not accept any liability for indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business stagnation, dames resulting from claims of the Client’s customers, damage related to the use of items, materials or third-party software prescribed to EXS by the Client, and damage related to engaging suppliers prescribed to EXS by the Client. EXS also does not accept any liability related to mutilation, destruction or loss of data or documents.
20.4. The exclusions and limitations described in articles 18.1 up to and including 18.3 shall in no way prejudice the other exclusions and limitations of liability of EXS described in this Agreement.
20.5. The exclusions and limitations referred to in articles 18.1 up to and including 18.4 shall lapse, if and insofar the damage is the result of intent or wilful recklessness on the part of the management of EXS.
20.6. Unless fulfilment by EXS becomes permanently impossible, the liability of EXS due to (an) imputable shortcoming(s) in performing an Agreement only arises if the Client forthwith declares EXS to be in default in writing and granting a reasonable period to remedy the shortcoming(s), and EXS continues to fail imputably after that period. The notice of default must contain a description of the shortcoming(s) that is as complete and detailed as possible, thus providing EXS with the opportunity to respond adequately.
20.7. A condition for the existence of any right to compensation shall in all cases be that the Client notifies EXS in writing of damage as soon as possible after occurrence. Any claim for damages towards EXS shall lapse 24 months after the claim has arisen, unless the Client has filed legal action for compensation of damage prior to the expiration of that period.
20.8. The provisions in this article, as well as all other limitations and exclusions of liability described in these General Terms and Conditions, shall also apply in favour of all persons or legal entities engaged by EXS to perform the Agreement.
21. Dissolution and Termination of the Agreement
21.1. Each party is only authorised to dissolve the Agreement due to (an) imputable shortcoming(s) in performing the Agreement, if the other party, in all cases after being notified of being in default in writing as detailed as possible, and granted a reasonable period to remedy the shortcoming(s) in question, imputably fails in fulfilling essential obligations arising from the Agreement. Payment obligations of the Client and all other obligations of the Client or a third party engaged by the Client to cooperate and/or provide information, shall in all cases be deemed as essential obligations arising from the Agreement.
21.2. If, at the time of dissolution, the Client has already received goods and/or services pursuant to performance of the Agreement, these goods and/or services and related payment obligations shall not be subject to nullification, unless the Client proves that EXS is in default with respect to these goods and/or services. Amounts invoiced by EXS prior to the dissolution and related to goods and/or services already delivered and/or performed adequately, shall remain payable in full, in compliance with the provisions of the previous sentence, and will become due immediately upon dissolution.
21.3. If an Agreement, which by its nature and contents does not terminate by completion, is entered into for an indefinite period, it may be cancelled in writing by each party, after proper consultation and stating the reasons. If the parties have not agreed on a notice period, they shall observe a reasonable notice period. In the event of cancellation, EXS shall never be obliged to pay any compensation.
21.4. The Client is not entitled to prematurely terminate an Agreement to provide services entered into for an indefinite period.
21.5. Either party may terminate the Agreement in writing without notice of default, in whole or in part, with immediate effect, if the other party is granted suspension of payments, whether provisionally or not, if the other party is declared bankrupt, if the business of the other party is liquidated or terminated for a purpose other than reconstruction or merging of companies. EXS may also terminate the Agreement in writing without notice of default, in whole or in part, with immediate effect, if decisive control over the Client’s company changes directly or indirectly. In the event of termination as referred to in this paragraph, EXS shall not be obliged to refund monies already received, nor pay damages. In the event of the irrevocable bankruptcy of the Client, the Client’s entitlement to use Software made available, as well as access to and/or use of Services shall then cease, without requiring any action on the part of EXS to terminate.
22. Obligations After Termination of the Agreement
Should the Agreement be terminated or dissolved in any way, provisions that by their nature are intended to stay in effect, even after termination, such as provisions regarding liability, confidentiality, intellectual property rights, applicable law and a competent court, shall remain in full force and effect.
23. Prohibition on Employment of EXS Staff
The Client is not permitted to employ EXS employees without consent of EXS, even if it concerns employees on secondment at the Client, for a period of two years after termination of the Agreement in question.
24. Personal Data
24.1. EXS is committed to handling personal data with due care. This due care is guaranteed by a confidentiality agreement signed by EXS staff. In addition, the Client is provided with a processing agreement which describes rights and obligations. If this agreement is not signed within 10 working days or annotated with comments, it will be considered signed.
24.2. EXS has a security policy which is frequently updated.
25. Transfer of Rights and Obligations
25.1. The Client shall under no circumstances sell, transfer or pledge the rights and obligations under any Agreement to third parties.
25.2. EXS is entitled to sell, transfer or pledge its remuneration claims to third parties.
26. Applicable Law and Disputes
26.1. These Terms and Conditions and the Agreement with the Client shall be governed by Dutch law.
26.2. Any dispute arising from the interpretation or performance of these General Terms and Conditions, as well as any dispute arising from any Agreement between EXS and the Client shall be settled by the competent court in Amsterdam, unless agreed to otherwise. A dispute arises, if either party notifies the other party of the dispute by registered mail.